Custody When a Parent Dies in Tennessee: What Relatives Need to Know

The Surviving Parent Has Priority

When one parent dies, Tennessee law presumes the surviving biological parent has the right to custody. This is true even if the child has been living with grandparents or other relatives for months or years. A relative who wants to keep the child cannot simply continue as before — the surviving parent can claim the child at any time unless a court intervenes.

If you are a relative caring for a child after a parent's death and the surviving parent is involved, you face the constitutional parental-rights presumption from Blair v. Badenhope. To obtain custody or guardianship over the surviving parent's objection, you must prove by clear and convincing evidence that placing the child with that parent would cause substantial harm.

When Both Parents Are Deceased

If both parents are deceased, the constitutional parental-rights barrier does not apply. A relative files a Petition for Guardianship of the Minor under T.C.A. Title 34 and attaches certified death certificates for both parents. The court then evaluates the child's best interests without needing a finding of substantial harm.

Formal notice must be served on the child's closest relative or relatives and present custodian identified under T.C.A. § 34-2-104; the statute does not limit notice to relatives who live in Tennessee. The child is the respondent. If the court appoints a guardian ad litem, the guardian ad litem consults with the child and reports to the court.

Which Court Handles the Case

The answer depends on what the child needs:

• Guardian of the person only: Juvenile court in a county with venue under T.C.A. § 34-2-101(b): where the child or parents reside, or, if the parents live apart, where the custodial parent resides.
• Guardian of person and property (the child has an inheritance, life insurance proceeds, or another financial asset): A court exercising probate jurisdiction or another court of record in a county with venue under T.C.A. § 34-2-101(b), such as chancery court or a circuit court's probate division.

Property guardianship carries additional duties: a sworn inventory within 60 days, a sworn accounting within 30 days after the six-month anniversary of appointment and then within 60 days after each accounting period ends (the accounting period cannot exceed 12 months), and usually a bond.

Documents to Gather

Start collecting these before you file:

• Certified death certificate for each deceased parent
• The child's birth certificate
• Any existing custody or guardianship orders from any state
• Records showing the child's living arrangement (school enrollment, medical records, utility bills at your address)

Life Insurance and the Child's Estate

If the deceased parent named the child as a life insurance beneficiary or if the child stands to inherit property, a court-supervised guardianship of the estate may be required before anyone can access those funds on the child's behalf. The guardian of property manages the money under court oversight, files required accountings, and generally posts a bond equal to the fair market value of all the child's personal property plus one year's anticipated income from all property, including real property. The court may waive the bond in limited circumstances.

Benefits After a Parent's Death

A child whose parent has died may qualify for Social Security survivor benefits through SSA. TennCare or CoverKids may cover the child's health insurance depending on the child's eligibility category and household income. Relatives who obtain a custody or guardianship order can also apply for a Families First child-only TANF grant through the Tennessee Department of Human Services.

Get the Full Filing Process

The Guardianship and Custody for Grandparents and Relatives in Tennessee guide covers each scenario — one parent deceased, both parents deceased, surviving parent cooperating or contesting — with the filing steps, notice requirements, and a hearing-preparation checklist.

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